Gene Carr, Appellant, v. United States, Appellee, 663 F.2d 59 (8th Cir. 1981)

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U.S. Court of Appeals for the Eighth Circuit - 663 F.2d 59 (8th Cir. 1981) Submitted Nov. 3, 1981. Decided Nov. 10, 1981

John F. Murray, Acting Asst. Atty. Gen., Michael L. Paup, Charles E. Brookhart, Stanley S. Shaw, Jr., Attys., Tax Div., Dept. of Justice, Washington, D. C., for the U. S.; Terry L. Pechota, U. S. Atty., Boulder, Colo., Dawn Bowen, Asst. U. S. Atty., Pierre, S. D., of counsel.

Before BRIGHT and ARNOLD, Circuit Judges, and DAVIES* , Senior District Judge.


The IRS, in the course of its investigation of Taxpayer, issued a summons directing the First Fidelity Bank of Culome, Culome, S.D., to produce certain of its records in connection with the investigation. When the Bank did not comply the Government instituted enforcement proceedings in the District Court. Taxpayer filed a motion to intervene but failed to appear on the date set for hearing. On February 8, 1980, an order was entered enforcing the summons and, on February 28, 1980 an order was entered nunc pro tunc as of February 5, 1980, denying Taxpayer's motion to intervene. Taxpayer appealed and this Court, United States v. First Fidelity Bank of Culome, 631 F.2d 568 (1980), held that the motion to intervene should have been granted and remanded for that purpose. While the appeal was pending the Bank complied with the District Court's enforcement order.1  On remand the Government moved to vacate the enforcement order and to dismiss the proceedings as moot. Taxpayer moved to suppress the records.

The District Court vacated its enforcement order, dismissed the action as moot and denied Taxpayer's motion to suppress. Taxpayer appeals.

In his pro se brief on appeal Taxpayer contends that the District Court's dismissal of the action and denial of his motion to suppress prevented his raising constitutional issues. This contention is totally without merit. United States v. Olson, 604 F.2d 29 (8th Cir. 1979); United States v. Groskph, 619 F.2d 707 (8th Cir. 1980). The appeal is dismissed pursuant to Circuit Rule 12(a).


The Hon. Ronald N. Davies, Senior United States District Judge for the District of North Dakota, sitting by designation


This procedure was criticized in U.S. v. Olson, 604 F.2d 29 (8th Cir. 1979), and need not occur. See United States v. Community Federal S & L Ass'n, 494 F. Supp. 363 (E.D. Mo. 1980), aff. 661 F.2d 694 (per curiam) (8th Cir. 1981)